V.A. Refusing to provide CP&R Exam after being told to by a BVA Judge

[Omariak]

Greetings Fellow Vet's

My handle is Omariak, I am a  Vietnam veteran honorably discharged in 1973.  Upon discharge I first filed a service connection claim with the Los Angeles V.A., this was completed  in 1974.  At that time the VA took me to a CP&R exam and because of my  lost Service Treatment Records (These records were found after over 40 years of being missing..) being lost the doctors were unable to provide the VA with a decision on my Service Connection Claim.   Sometime around 2008 I was diagnosed with Hep-C.  After doing some research I discovered that this occurred while on active duty.  More precisely via the Jet-Air Gun.  As I have informed the VA the circumstances surrounding the claim happen while in Basic Training, with a significant part of my Unit being Hospitalized because of Something.  Well after two Letters to the White House and their subsequent request to the records center my service treatment records (records that I had been tell the VA were there.) were found.  And on the very first page it says that I was hospitalized for "An Unknown Infection".  After the discover (my belief, is that the Los Angeles V.A. destroyed the service treatment records circ 1974 (if the News Report are correct the LA VA was disciplined for destroying returning Vietnam Veterans medical files to alleviate the back-log of service connect claims.)   Upon filing a new claim in 2009 I was provided  CP&R exam, and again the doctor stated that without the STR he couldn't concluded that the infection was service connected.  The VA again denied my claim based on the doctor's conclusion.  I followed the appeals process and my Service Connected claim went before a Veterans Law Judge "Thomas H. O.Shay.  While awaiting the judges decision the STR were found and forwarded to the Veterans Law Judge.  This Judged ordered the VA to send me to a CP&R exam.  The VA denied my claim, and stated that I would not received another CP&R exam.  The Veterans Law Judged issued another decision again ordering the VA to send me to another CP&R exam with the newly discovered STR.  This was six months ago, and I believe the VA will not overturn themselves and provided me with a CP&R exam.  

What actions are available to me??? 

[broncovet]

The VARO did that to me, also (failure to comply with a BVA remand order).  

The VA follows all its rules "WHEN" it's convienient for them to do so.  Or "If" they want to.  

Its time to bring out the big guns, but only if you have given them sufficient time and notice to comply.  The VA has an "unlimited amount of time" to comply even tho the BVA requires "expiditious treatement" with your remand.  Expiditious Treatment is defined as "when or if the VA decides to do it."  

First, put in a hotline call (or email)  to white house, detailing your issue.  (It does not need to be 12 pages, complaining of every mistake the VA ever made.  I suggest a couple paragraphs, and no more than 2 pages) . 

Further, send notice (again) to the VARO that they failed to comply with the remand order, and what it was they failed to comply.  

Finally consider a Writ of mandamus, but it will be denied unless you show you have exhauseted other means.  

Send a "notice of intent to file a Writ of Mandamus" to the VARO, explaining they failed to give you the required C and p exam.  

Then file the writ.  Alex Graham can tell you how to file a writ.  He has filed at least one.  So have I, but he is more current on this.  

The VA's second favorite thing to do (after denials) is delays.  There is significant financial incentives for VA to delay you as long as possibe.  "Delaying you till you die" is not just a motto anymore, its an every day occurence.  Thousands and thousands of Vets have lost out because they died before the claim was completed and their widow did not know they had to file a substitution of claimant.  

 

Edited June 12, 2018 by broncovet
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[Berta]

Alex is also an Expert on Hep C and air gun injections.

  "Upon discharge I first filed a service connection claim with the Los Angeles V.A., this was completed  in 1974.  At that time the VA took me to a CP&R exam and because of my  lost Service Treatment Records (These records were found after over 40 years of being missing..) being lost the doctors were unable to provide the VA with a decision on my Service Connection Claim.   Sometime around 2008 I was diagnosed with Hep-C. "

1974 claim----A lawyer would see the $$$ potential in that- and I agree  that you might need not only a lawyer but also a strong Independent Medical opinion.

Hep C vets , like Alex, have won their claims. The first win of all was maybe 15-20 years  ago.

VA at the time was trying to blame intervenous street drug  use and/or tattoos as the cause of Hep C.

Can you give us your BVA docket #? BVA remands and other decisions are public knowledge but no identification of the specific veteran? We might see somethig when we an read it that will help.

 " As I have informed the VA the circumstances surrounding the claim happen while in Basic Training, with a significant part of my Unit being Hospitalized because of Something. "

Did you ever find out what that 'something'; was?

Have you ever googled your exact Unit in Vietnam ?

You have been VERY proactive in pushing this issue-but I know how frustrating it can be- and I know to that being proactive leads to Success!

"The VA denied my claim, and stated that I would not received another CP&R exam.  The Veterans Law Judged issued another decision again ordering the VA to send me to another CP&R exam with the newly discovered STR.  This was six months ago, and I believe the VA will not overturn themselves and provided me with a CP&R exam."

If they dont give you another C & P exam - that is worth your while to contact to POTUS's Veterans hot line:

855-948-2311

But what if they do- and the examiner still denies that claim?

That is when a IMO (Independent Medical Opinion) following the IM0 criteria here at hadit- is fully worth the expense-as if it is favorable, the IMO fee will be absorbed at some point by SC comp that you might never get without it.

Vietnam= are you are of all of the VA presumptives due to Agent Orange.?

 

 

[Berta]

I found the SC award  I meant:

https://www.va.gov/vetapp07/files4/0731743.txt

When this made news in the Veterans internet community in 2004 I called Monte Wilson of the VVA ( who represented this vet)and asked him how they did it- the decision was not at the BVA web site yet.

The veteran had obtained a strong IMO from Dr. Craig Bash of Bethesda.

Many here , to include myself, have hired Dr Bash for IMOs.

I had an unusual case at the time-

Diabetes mellitus contributing to my husbnd's death.

The DMII had never been diagosed or treated by VA, although my husbband had been  a VA patient and employee for many years.

I was told my claim was "impossible" by many-

I don't accept negativity and had done so much medical research on this claim, I knew Dr Bash would concur with my lay medical opinion.

It was the most important claim I ever filed-----worth close to, if not over 100 thousand due to many ancillary benefits my prior DIC award did not provide.

NOTHING is impossible!

 

 

 

 

[Berta]

Here is another Hep C award:

http://www.hcvets.com/data/occupational/munji/2014militaryservicewin.htm

Take note of the 2004 VA  Fast Letter which might help your claim.

Aso this site has more info for HCvets.

[broncovet]

I agree with Berta.  You could/should get an IMO/IME with/or without a c and p exam.  Remember, when YOU pay the doctor, the doc is representing YOUR interests, when VA pays the doc, the doc represents the VA's interests.  

Getting an IMO/IME now, may just save you years of Writ/appeals/delays.  The claim is still pending, so 38 cfr 3.156 b should apply to your effective date.  That is, if you submit new evidence (an IMO) the effective date should apply "as if" it was submitted at the same time you filed the claim.  

[Buck52]

One time I had a 20 YEAR EXPERIENCED  DRO tell me that he never understood how/why the VA hires these Idiot Dr's in the first place  Ahhhhh but it keeps me in a Job...LoL